Presumption of paternity: what is it, how long does it last?

Good afternoon!

In various areas of Russian legislation, the term “presumption” is quite widely used, which means nothing more than an assumption that is true until the contrary is proven in court. In family law there is also the concept of “presumption of paternity”. What is it and what features should you know about, we’ll talk today.

300 days after marriage

According to Russian law, the presumption of paternity is a legal statement according to which the legal (official) father of a child born in an official marriage or within the next three hundred days after its termination, annulment or death of the husband is the legal spouse or former legal spouse of the mother .

This rule applies only if the contrary statement is not proven in court. It should be noted that if the child’s mother refuses to conduct a genetic examination (DNA test) to refute paternity, it will be almost impossible to prove the man’s non-involvement in the birth of the baby.

This legal norm is regulated by paragraph 2 of Article 48 of the RF IC and Article 17 of the Federal Law “On Acts of Civil Status”.

In other words, in the civil registry office the procedure for establishing the paternity of a newborn occurs “by default” upon presentation of:

• marriage certificates;
• divorce document or death certificate of a spouse (if the validity of the document does not exceed three hundred days).

A paternity document may be needed for:

• registration of child benefits;
• legal grounds for collecting monthly maintenance from the child’s father;
• obtaining the right to inherit the father's property by the child;
• registration of a pension associated with the loss of a breadwinner.

In addition, a certificate of paternity may be useful to the father himself if the child’s mother prevents the baby from communicating with the second parent.

Legal consequences

In accordance with the legislation currently in force, a person legally established as the father of a child bears a number of obligations to him, including obligations for:

• education - pay due attention, assistance in development, education, treatment;
• maintenance - material participation, including in a forced manner through the assignment of alimony;
• preserving the legitimate interests and rights of the child, such as the right to receive pension payments for the loss of a breadwinner, inheritance rights and others.

Thus, the establishment of paternity entails the fulfillment of a number of obligations in relation to the minor, including the payment of alimony, if such is assigned in court.

Although the presumption of paternity was developed to improve the situation of mother and child, controversial legal situations sometimes arise, including when:

• a woman gives birth to a child in marriage from another man;
• a woman gives birth to a child from another man after the dissolution of her first marriage, but within three hundred days.

The peculiarity of these situations is the fact that in each of them the mother’s first husband will be recognized as the legal father of the child, even if both the legal and biological father claim the opposite.

The consequences of forced recognition of paternity can be avoided or annulled only in court by filing a statement of claim to challenge the fact of paternity (Article 52 of the RF IC).

It is necessary to understand that filing a claim to disprove paternity without any evidence will not work - it will simply not be accepted.

Interestingly, the courts do not accept cases in which artificial insemination appears as a method of conceiving a child.

It should be noted that not only the legal parents of the child have the opportunity to file an application to challenge paternity, but also:

• the child's biological father;
• the child himself, provided that at the time of filing the application he has already reached the age of majority;
• guardians of incapacitated parents;
• guardians of the child.

Thus, to file a claim to challenge paternity, you will need the following set of documents:

• statement of claim;
• payment document confirming payment of the state duty;
• marriage certificate;
• child's birth certificate;
• documentary evidence of the lack of relationship between the child and his legal father.

In this case, the procedure for challenging the presumption of paternity is as follows:

• determination of the initiator of the claim:
  • legal father of the child - the defendant in the claim will be the biological father of the child or his mother;
  • mother of the child - the defendant in the claim will be the legal father of the child;
  • biological father of the child – the defendant in the claim will be the legal father of the child.
• drawing up a statement of claim in accordance with Article 131 of the Code of Civil Procedure of the Russian Federation;
• payment of state duty (300 rubles);
• filing a claim for consideration in the district (city) court at the place of residence of the defendant;
• contacting the civil registry office at the place of registration of the child with a copy of the court decision in order to cancel the entry about the father in the birth certificate.

It should be noted that if a person falls under the presumption of paternity and is recognized by default as the child’s parent, then his responsibilities include financial support for the child until the contrary is proven in court. If the legal father evades the voluntary fulfillment of these obligations, the child’s mother has the right to demand payment of alimony even if the father is not his own.

If the stepparent challenges paternity in court, then the payment of alimony will officially stop only from the moment the court decision enters into force.

In this case, funds paid as child support before the procedure for disproving paternity are not subject to return.

In a civil marriage

Establishing paternity in a civil marriage is not difficult if the father voluntarily recognizes the child.

To do this, after the birth of the newborn, you need to visit the registry office, having with you:

• identification documents;
• child's birth certificate (available);
• payment document confirming payment of the state duty;
• certificate from the maternity hospital.

An application should be submitted to the registry office in form 12. Joint submission of such an application means the unconditional consent of both parents to assign the child the father’s surname and the emergence of all the responsibilities arising from this.

• After all documents have been submitted and paternity has been properly formalized, the registry office staff will record the father’s details in the birth record book.
• If the common-law husband refuses to recognize paternity, the child’s mother has the right to bring him to court proceedings and, consequently, to pay a monthly child support.
• If the initiator of establishing paternity is the child’s father, and the mother died or was deprived of parental rights, then the applicant should contact the civil registry office with the following package of documents:

• general passport;
• payment document confirming payment of the state duty;
• child's birth certificate;
• permission from guardianship authorities;
• documentary evidence of the mother's incapacity or death.

In conclusion, I would like to note once again that the presumption of paternity implies legal confirmation of the paternity of the spouse (former spouse) of the mother if the child was born in marriage or within three hundred days after the divorce, annulment or death of the spouse.

In this case, it is possible to achieve a refutation of paternity only in court by filing an appropriate statement of claim and providing indisputable confirmation of the lack of relationship between the child and the parent: testimony of witnesses, results of a genetic examination, medical certificates and other documents.

Accordingly, if the child’s mother refuses to conduct a DNA test to establish paternity, it will be possible to challenge it only if there is other irrefutable evidence.

About the problems of establishing paternity in the video:

Share:

What does the concept of presumption of paternity mean in 2023?

Reading time: 5 minutes

Translated from Latin, the term “presumption” means “assumption”. In legislation, it means a deliberate assumption of the truth of a particular fact until the contrary is irrefutably proven.

One of these phenomena is the presumption of paternity in modern Russian legislation.

The concept of presumption of paternity in the Russian Federation

The presumption of paternity implies the automatic descent of a child from a man, that is, his biological father, if the man and woman are officially married. In this case, the child’s parents do not need to prove the child’s origin from a specific citizen of the Russian Federation.

Currently, the presumption of paternity is a legally established norm that relieves spouses, if there is agreement between them, from a lot of legal difficulties.

Naturally, no one denies the unpleasant fact that the father of a particular person may not be the legal spouse, but a completely different citizen. But to prove this, you will need to go to court.

After registration and establishment of the origin of the newborn, his father and mother acquire parental rights.

Issues of presumption of paternity on the territory of the Russian Federation are regulated by the following legislative acts:

• Part 2. Art. 48 of the Family Code of the Russian Federation. It states that if a child was born from persons currently in an official marriage, his mother’s husband is recognized as his father, unless otherwise proven. The paternity of the spouse of the child's mother is certified by a marriage registration record.
• Part 1. Art. 61 of the Civil Procedure Code of the Russian Federation. According to it, circumstances recognized by the court as generally known do not need to be proven.

From a legal point of view, the only thing that is significant in these matters is the fact of the existence of an official marital relationship between a man and a woman. The situation is not tied to the moment of conceiving a child.

Take a sociological survey!

Conditions for exercising the right to presumption of paternity and its validity period in the Russian Federation

To exercise his right to the presumption of paternity, a man must be officially married to the mother of his son or daughter. He is automatically recognized as the father of children born in marriage until the contrary is proven.

The presumption of paternity begins to apply from the moment the child is born.

In addition, the presumption of paternity is valid for 300 days from the date:

• official divorce;
• death of the child's father, who was legally married to his mother.

In controversial situations, when a woman gets married and gives birth to a child whose father is another person, before the expiration of the three hundred day period after the divorce, the fact of parenthood will need to be proven in court.

The procedure for establishing paternity in unregistered relationships

What is commonly called a civil marriage, from the point of view of legislation, is nothing more than the cohabitation of two persons, which does not lead to a number of legal consequences, one of which is the presumption of paternity.

In such a situation, there are three options for establishing paternity:

• when both parents, after the birth of a child, contact the civil registry office at the place of registration of the child and submit a joint application to recognize a specific citizen as the father of the baby;
• before the birth of the child during the mother's pregnancy, according to Art. 48 of the RF IC, - through an appeal to the territorial division of the Civil Registry Office;
• in court if there are disagreements between the parents and the biological father is not ready to recognize himself as such.

In case of voluntary recognition of himself as a parent, the man is issued a certificate of paternity. It indicates the full name of the parents and the child, the exact date of birth of the child, the surname assigned to the newborn, the number of the civil status act, information about the organization that issued the document and the official who signed it.

For issuing a document, in accordance with Art. 333.26 of the Tax Code of the Russian Federation, a state duty of 350 rubles is charged.

Establishing paternity in court in the Russian Federation

If there is no agreement between the parents or the situation is dubious from the point of view of the law, paternity is established in court. The procedure is regulated by Art. 131 of the Code of Civil Procedure of the Russian Federation, which describes the details and rules for filing a claim in court in civil cases.

According to current legislation, a claim may be filed in court:

• at the place of residence / actual location of the defendant (Article 28 of the Code of Civil Procedure of the Russian Federation);
• at the location of the defendant’s property or his last known place of residence in the Russian Federation (Article 29 of the Code of Civil Procedure of the Russian Federation).

Consideration of such claims, says Art. 24 of the Code of Civil Procedure of the Russian Federation, is carried out at the level of district courts. In this case, the main evidence is DNA examination, but do not forget that, according to Art. 79 of the Code of Civil Procedure of the Russian Federation, the defendant has the right to refuse it. In this case, the decision on the case is solely at the discretion of the judge.

A potential parent who has evaded the examination may be recognized as the father of a specific person by a court decision on the basis of other evidence: letters, photographs, receipts presented by the applicant, testimony of witnesses, certificates from medical institutions and other documents.

For the procedure, according to Art. 333.19 of the Tax Code of the Russian Federation, a state duty of 300 rubles is charged. A receipt for payment is attached to the statement of claim.

How can you challenge paternity in the Russian Federation?

According to Art. 52 of the RF IC, challenging paternity can be carried out exclusively in court.

The claim can only be filed by the person recorded in the documents as the father or mother of the child, the alleged biological parent, or the child himself upon reaching the age of majority (18 years).

In addition, the guardian (trustee) of a child and the guardian of a parent declared incompetent by the court have the right to do so.

However, the requirement cannot be satisfied in the following cases:

• if the parent knew at the time of recording that he was not actually a parent;
• if the parent refers to the fact of artificial insemination and embryo implantation;
• if the surrogate mother refers to the fact of embryo implantation.

Presumption of paternity and the issue of alimony in the Russian Federation

Recognition of a man as a father imposes on him the obligation to financially provide for his son or daughter until they reach adulthood (18 years). In the event of a divorce, the child's mother has the right to demand alimony from her ex-husband.

If there are doubts that a citizen is the biological father of a person, this fact can only be challenged through the court. It should not be forgotten that a mother may not consent to a DNA test for her child and no one can force her to do so.

In such a situation, the plaintiff’s evidence may include: testimony of disinterested witnesses or documents proving the fact of separation of spouses.

Legal consequences of the entry into force of the presumption of paternity

It should be remembered that the presumption of paternity is not just a hypothetical assumption or a possible fact, but a legally binding statement that the father of the child is a specific citizen of the Russian Federation.

This entails a number of very specific legal consequences for a man who is a citizen of the Russian Federation:

• the procedure for establishing paternity in the registry office is carried out by default;
• any challenge to the fact of parenthood is possible only in court;
• a citizen acquires both the rights and responsibilities of a parent in relation to a particular child.

The main purpose of the presumption of paternity is to protect the rights of minor citizens of the Russian Federation.

Examples of court decisions in paternity cases in the Russian Federation

The situation is not always simple and transparent. If paternity is contested in accordance with the procedure established by law, you should collect the necessary evidence and go to court, which will make a decision in accordance with the weight of the arguments you presented and the interests of the minor. Below we provide several examples of such solutions.

1. Decision in case 2-172/2017 ~ M-150/2017 (11/28/2017, Laksky District Court, Republic of Dagestan). The name of a citizen, previously recorded as the father of the child on the basis of the presumption of paternity, was excluded from civil status acts based on the mother’s appeal. The marriage was terminated at the time the lawsuit was filed. The child’s mother claimed that the registry office did not take into account her statement that the legal spouse was not the child’s father, citing the presumption of paternity.
2. Decision in case 33-11471/2017 (11/14/2017, Altai Regional Court). The daughter demanded the court to exclude the entry about her mother from the civil status records on the grounds that her mother was disgracing her by illegally accusing her of illegal actions, in particular, drug use. The court refused, since the basis for establishing paternity/maternity is the very fact of family relations, and not the personal relationship of the parties.
3. Decision in case 2-157/2017 ~ M-159/2017 (09.11.2017, Bulunsky District Court, Republic of Sakha, Yakutia). By mutual consent of the child's parents, who are not in an officially registered marriage, the previously made entry about the father in the civil status act was deleted.

Presumption of paternity in marriage

Presumption (from Latin “assumption”) is a term often used in legal practice: it means the truth of an assertion until proven otherwise. In Family Law, the presumption of paternity is the automatic establishment of parental rights. But this does not mean that the child is descended from a man, and in some situations this fact has to be proven.

Basic information

In practice, the presumption of paternity looks like this. If the child’s mother has entered into an official marriage with a man, then he is automatically granted parental rights. This applies at the birth of the child.

The presumption of paternity is the establishment of parental rights automatically in the registry office if there is a certificate of registration of marriage relations.

In reality, this term is the cause of many controversial situations. Legal proceedings are regularly initiated. But the legislation states the following: the term was introduced to protect the interests and rights of a minor. A child must have a parent, and an adult must fulfill the obligations assigned to him.

The beginning of the presumption of paternity

Art. 48 of the RF IC sets out the terms and conditions for the presumption of paternity to come into effect.

1. A child is born into an officially registered marriage union.
2. The child was born before the end of the 300-day period from the date of death of the spouse.
3. The husband and wife divorced, but the child was born before the end of the 300-day period from the date of dissolution of the marital relationship.

The period of 300 days is set for the reason that this is the approximate period for gestation.

In what situations do disputes arise?

Paternity is established automatically when a woman and a man enter into an official marriage and a child is born in their marriage. Disputes may arise in the following situations:

• a woman cheated on her husband with another man;
• the spouses have not been living together for a long time, but have not officially divorced, while the woman during this period gives birth to a child conceived from another man;
• The couple filed for divorce, the woman became pregnant by another man, but the child was born in the early stages.

In such situations, the non-biological legal father has the right to waive his parental rights.

Sometimes women can deliberately confuse their husbands and provide evidence to the contrary. In some cases, a man already knows at the time of marriage that his future wife is carrying a child from another person, but subsequently he has a desire to formalize a waiver of parental rights.

According to Art. 52 of the RF IC , such situations are resolved exclusively in court.

Is it possible to challenge

It is necessary to prepare the following list of documentation:

• direct application;
• identification document (passport);
• certificate establishing the fact of marriage;
• birth certificate;
• a receipt confirming the paid state fee for studying the case (its amount is 300 rubles).

In a situation where the man already knew that the child was not his, and the wife did not hide such information, the request to consider the case will be rejected. The man will continue to be considered the legal father of the minor.

As soon as the case begins to be considered, the spouses will be informed of the start date of the hearing.

The man will need to prove that he is not related to the minor child. To achieve this goal, you can use the following materials:

• certificates, medical reports and other documentation;
• photo and video materials;
• witness statements;
• genetic examination.

If the court ruling is positive, the man takes the court decision and goes to the registry office so that authorized employees make appropriate changes to the child’s birth certificate.

After this procedure, the man is relieved of all responsibility for raising the child, his financial support, etc.

When information about the father is missing

When a woman is legally married, her child cannot have a father. Within 1 month after the baby is born, parents must receive an appropriate birth certificate. It contains information about the child and his parents, which is carried out in order to protect the interests of the minor.

According to Art. 17 of the RF IC , information about the father is not recorded if the woman is a single mother and not married.

If the relationship is registered, it will not be possible to cancel the presumption of paternity. It is only possible to challenge it through legal proceedings.

About cohabitation

To do this, the man and woman go independently to the registry office, where they need to agree to enter the necessary information into the birth certificate. After this, the man will become the legal father of the baby.

A woman and a man cannot unilaterally, being only cohabitants, recognize the latter as the father of the child.

Alimony payments

Let's consider whether the presumption of paternity is valid within days from the date of divorce or not.

According to the RF IC, parents are obliged to provide financial support for minors until they turn 18. In the event of a divorce, the separated parent (most often a man) is obliged to continue to provide financial support. If a man has doubts that the child is his, then he may want to challenge the fact of paternity, especially when the woman has filed for alimony.

In rare situations, men return child support that was previously paid for the child. To do this, they need to prove the fact that they became fathers due to their wife’s deception. For example, a woman deliberately falsified documentation of a DNA test. The statute of limitations for such cases is 36 months.

Let's sum it up

Such a phenomenon in legal practice as the presumption of paternity currently causes many controversial situations. A man has the right to challenge his paternity, but in some cases (for example, he knew that the child was not his) the court will reject the case.

During a divorce, a man can challenge his paternity in order not to pay alimony. If his ex-wife falsified DNA documents, then he has the right to return previously paid alimony.

The presumption of paternity at the birth of a child is valid during marriage and for 300 days from the date of its dissolution

The term “presumption” is widely used in various types of legislation, which essentially means “a presumption that is true until proven otherwise.” In particular, in family law, in the matter of establishing kinship between fathers and children, the concept of “presumption of paternity” is widely used.

The presumption of paternity is a legal assertion that the father of a child born during marriage or after 300 days after its termination is automatically recorded as the spouse (former spouse) of the mother, unless proven otherwise. This norm is prescribed in paragraph 2 of Art. 48 RF IC and art. 17 Federal Law “On acts of civil status”.

Those. The procedure for establishing the paternity of a newborn in the civil registry office occurs “by default” upon presentation of the following documents:

• marriage certificates;
• divorce certificates, the validity of which does not exceed 300 days (which is approximately equal to the biological period of bearing a child).

In these cases, an entry in the “father” column in the birth certificate will be made in relation to the spouse (or ex-husband) under the above circumstances, even if the mother and father of the child themselves claim the opposite, without having specific evidence.

The presumption of paternity as a legal norm was developed to protect the rights and interests of a minor child and his mother in order to simplify the establishment of a second legal representative - the father, in order to vest him with the responsibilities of a parent for the upbringing and maintenance of the child.

When is the presumption of paternity valid?

The wording of clause 2 of Art. 48 of the Family Code of the Russian Federation clearly defines the conditions and duration of the presumption of paternity:

• the child was born when the parents were in a registered marriage;
• the newborn was born within 300 days from the date of divorce (or invalidation);
• the child was born within 300 days of the death of the mother's spouse.

Refutation of the fact of paternity after this is possible only in court by filing a statement of claim “On challenging paternity” to the city (district) court by authorized persons.

Only a relationship with a child challenged in court releases the father from all responsibilities towards the child, including from paying alimony, but only from the moment this court decision is made.

Consequences of the presumption of paternity

It is known that the person identified as the father of the child, according to morality and law, bears a number of obligations to him:

• duty of upbringing (paying due attention and care to your son or daughter, providing assistance in education, development, treatment);
• obligation to maintain (material participation in the life of a child, including by force - through the assignment of alimony - in case of evasion);
• the obligation to preserve the rights and legitimate interests of the son/daughter (the child’s inheritance right, the right to receive a survivor’s pension in the event of the death of the father or his recognition as missing, etc.).

Thus, vesting the father with the powers of a parent entails the fulfillment of his duties in relation to the minor child, including the payment of alimony, if the mother deems it necessary to collect it.

What if the father is not the father?

The presumption of paternity, although developed legally from the point of view of improving the situation of mother and child, sometimes brings considerable confusion into the lives of parents. This can happen when:

• a woman in marriage cheats on her husband and becomes pregnant by another man;
• a married couple separates without divorce, after which the woman enters into a relationship with another man and gives birth to a child from him;
• the ex-husband and wife divorced the marriage, the woman became pregnant by another man, but the child was born before 300 days had passed from the date of divorce from the first husband (including in the case of premature birth).

The diversity of situations is dictated by life itself, and in reality there can be much more of them, and in each of them the father of the child will be recorded as the mother’s first husband - even though both men (biological and legal fathers) and the woman herself will actually know and assert the opposite.

The consequences of the presumption of paternity can be canceled (or avoided) only through legal action, namely by filing a statement of claim in court to challenge paternity (Article 52 of the RF IC).

The procedure for challenging (refusing) forced paternity

To prove that the person registered as the father of the child according to the presumption of paternity (i.e. automatically), in fact is not such, it is necessary to go to court.

To do this you need to take the following steps:

1. Determine who will initiate the claim:
   • a father who is recorded on the birth certificate , but in fact is not one - then the defendant will be the mother or the biological father, if he is known;
   • mother of the child - the respondent will be the parent recorded in the certificate;
   • the biological father of the child , who subsequently wishes to legitimize his paternity - then the defendant will be the documented (step) “father”.
2. Prepare a statement of claim “To challenge paternity” in accordance with Art. 131 Code of Civil Procedure of the Russian Federation;
3. Pay a state fee of 300 rubles and send the claim for consideration to the city (district) court at the defendant’s place of residence;
4. In case of a positive decision of the court, which has entered into legal force, contact the civil registry office at the place of registration of the child to cancel the entry about the father from the birth certificate.

Presumption of paternity and child support

If a person falls under the presumption of paternity (i.e., by default is forcibly recognized as a parent), he is obliged to financially provide for his child until the contrary is proven, and in case of evasion of the voluntary fulfillment of this obligation, the child’s mother also has the right to count on alimony , even if the father is not his own.

In the event that the stepparent has challenged paternity in court, the payment of alimony will stop only from the moment the judicial act is issued .

This rule operates exclusively in the interests of the minor, since the child should not be held responsible for who was registered by his father and for what reasons - i.e. Maintenance funds paid to a child before the procedure for challenging paternity are not subject to return!

Presumption of paternity

What rights do children born out of wedlock have in relation to their father? What is the procedure for establishing paternity? Lawyer Nikolai Ryumin talks about these and other issues related to finding out the origin of the child.

300 days after marriage

Russian family law is based on the legal assumption that the father of a child born in marriage is the mother’s husband. This provision is otherwise called the presumption of paternity and means that a married woman, when registering a child, does not have to provide any evidence of his descent from her husband.

The presumption continues to apply not only during the marriage, but also for a certain period of time after its termination, determined by the duration of the pregnancy. This period is 300 days.

Thus, as a general rule, the father of a child born within 300 days from the date of divorce, invalidation or death of the spouse of the child’s mother will be recognized as the spouse (former spouse) of the mother.

The presumption of paternity can be rebutted. If the husband of the child’s mother, recorded as his father, believes that he is not such, or, conversely, the actual father declares his “rights,” the record of paternity can be challenged in court. There is no time limit for challenging paternity.

In this case, she has the right to register the baby on the basis of a joint application with a person who considers himself the father of this child (voluntary establishment of paternity), or to file a lawsuit to establish paternity against the person whom she considers to be such. Her husband, if he does not agree with this turn of events, has the right to challenge the recording made in court on a general basis.

At the same time, the child’s mother, who does not consider her husband to be his father, has no right to demand that a record of the child be made “at her direction” in the manner prescribed for cases where the child was born out of wedlock and paternity in relation to him was established neither in voluntarily, nor in court, and thereby refuse to register any man at all as the father of the child. In this case, the child will be left without a legal father at all, which, without a doubt, is contrary to his interests and therefore cannot be allowed.

Rules of Abdication

The emergence of various methods for the artificial generation of life makes it necessary to make appropriate adjustments to legislation. An example is the norms of the Family Code regulating the procedure for registering the parents of a child born using methods of artificial human reproduction. In particular, we can talk about artificial insemination with the participation of a donor.

In such cases, despite the fact that the man is not the genetic father of the child, he is nevertheless registered with the registry office as his legal father and assumes all responsibilities for raising and maintaining the child.

The genetic father, who in such a situation is the donor, on the contrary, completely distances himself from the child and undertakes not to establish his identity.

For such cases, the law specifically provides for restrictions on the possibility of challenging paternity, since it goes without saying that the man who is registered as the father of the child knows that he is not actually one: when challenging paternity, he does not have the right to refer to these circumstances.

Travel insurance

There are situations in life when a man who wants to establish his paternity in relation to a child born out of wedlock even before his birth, during the mother’s pregnancy, knows that during the expected birth of the child he will be far from him and his mother, for example, in long business trip, military service, expedition and physically will not be able to submit a joint application with the child’s mother to the registry office. In order to avoid unnecessary complications and simplify the procedure for voluntary establishment of paternity, the law allows for the possibility of filing a joint application to establish paternity even before the birth of the child. This is possible if there are circumstances that give reason to assume that filing such an application “may prove impossible or difficult after the birth of the child.” Such an application, submitted in advance, before the birth of the child, can, of course, be withdrawn at any time, and an entry about the parents in the birth registration book is made only after the birth of the child.

In search of dad, “hands are free”

Judges accept “any evidence that reliably confirms the origin of the child from a specific person,” including expert opinions. Of course, those circumstances that confirm the origin of the child are also taken into account.

Establishing paternity in relation to a person who has reached the age of majority is permitted only with his consent.

"Chase" with a fingerprint

When considering claims to establish paternity, courts, if necessary, order various examinations. Their purpose is to check whether the defendant is capable of childbearing, whether the child was conceived while the defendant was in another city, etc.

A blood test can only exclude paternity with absolute certainty, but not prove it. Almost unmistakably, the origin of a child from a certain person can only be established through medical genetic examination (the “genomic fingerprinting” method).

Therefore, the court can make a decision to establish paternity, provided that the man’s paternity is confirmed by medical genetic examination data, even in the absence of the above-mentioned circumstances or grounds (for example, there are no documents on which the man recognizes himself as the father, the parties have never lived together, the alleged father never supported the child, etc.).

Punishment for draft dodgers

Russian legislation does not provide for the possibility of compulsory examination in cases of establishing paternity.

However, due to the fact that avoidance of participation in the examination often complicates the resolution of the issue of establishing paternity, the court, depending on which party evades the examination and what significance it has for it, has the right to recognize the fact for the clarification of which the examination was appointed , established or refuted.

Of course, the mere fact of failure to appear for an examination cannot automatically be an unconditional basis for its interpretation in a light unfavorable for the evading party; it must necessarily be interpreted in connection with all other circumstances of the case.

See also:

What is the presumption of paternity at the birth of a child and how does it work in marriage?

Translated from Latin, the word “presumption” means “assumption”. This term is often found in legal practice. Its essence lies in the fact that the assumption put forward is true until circumstances appear that prove the opposite.

As for the Family Code, namely the use of the term “presumption” as paternity, here it means the establishment of parental rights automatically. Taking this into account, a number of controversial situations arise when the father has to prove the opposite using papers.

How does this happen in practice and is it possible to challenge paternity if you are married to the child’s mother?

What is presumption of paternity

The presumption of paternity is the automatic assignment of parental rights to the father if the child’s mother is married to this man.

That is, regardless of the relationship between the spouses, whether they actually live together or not, legally the father becomes the man who acts as the official spouse of the child’s mother on paper. This rule is set out in more detail in Article 48, paragraph 2 of the Family Code.

A similar statement can be found in Article 61 of the Civil Procedure Code, which states that generally accepted facts do not need confirmation, and if there are exceptions or controversial situations, this issue is raised only through the court.

Thus, the presumption of paternity is a procedure for establishing parental rights “by default” in the registry office, in the presence of a marriage certificate.

The term “presumption” is quite dubious and in practice causes a lot of controversy, and as a result, regular litigation, because we all know that any relationship has its own circumstances.

But, the legal side justifies the concept of “presumption of paternity” in order to protect the rights and interests of a minor child, who must have a second parent, and he, in turn, fulfill the obligations assigned to him, as well as obtaining a birth certificate in a simplified way.

When it works

So, when does such a concept as the “presumption of paternity” come into force? The conditions and terms are set out in more detail in Article 48 of the Family Code.

• If a child is born in a legal marriage.
• If the newborn was born no later than 300 days after the death of the spouse.
• If the spouses are divorced, but the child is born no later than 300 days after the date of divorce.

The calculation is based on exactly 300 days, since this is the period considered approximate for gestation.

If the mother remarries after the birth of the child, then the father is registered as the former spouse who was officially registered in a relationship with her at the time the child was conceived. In the event of a discrepancy between the specified data of the actual father on the papers and the biological one, as well as if there is no agreement with the fact of the presumption of paternity, the issue is resolved only through the judicial authorities.

What to do if the father is not the father

Considering that paternity is established automatically, if a woman and a man are married and they have a child, then various types of disputes may arise here, for example:

• when the wife cheated on her husband;
• when a married couple has not lived together for a long time, but the dissolution of the relationship has not been officially legalized, and at that time the woman gives birth to a child from another man;
• when the spouses are divorced, the woman becomes pregnant by another man, but the child is born in the early stages.

These are the most typical cases when, in fact, the legal father is not biological and then he has every right to renounce parental rights.

In practice, situations may differ, sometimes a woman deliberately confuses her husband and proves the opposite, sometimes a man, when registering a relationship, initially knows that the woman is pregnant from someone else, but then decides to abandon the child. Any of these issues can only be resolved in court (Article 52 of the RF IC).

Is it possible to challenge

If there are doubts that a child born in a marriage, or no later than 300 days after its dissolution, is not yours, you, of course, can challenge this and, as we have already said, the issue is resolved only through a district court.

You need to submit an application with a request to challenge the fact of paternity; the correctness of filling out such claims is given in Article 131 of the Civil Procedure Code.

In addition to the application, you submit the necessary documents, usually a passport, marriage certificate and birth certificate, and you also need to pay a state tax (300 rubles) for processing the case.

If a man previously knew that the woman was not pregnant from him and did not hide it, then such requests are rejected. The spouse will continue to be considered the father of the child.

Once the case is accepted for consideration, both parties will notify the date of the hearing. You should think in advance about how to prove the fact of lack of relationship with the born child.

These can be supporting documents (certificates, medical reports), photographs, videos, testimony. But irrefutable evidence is a genetic examination that will put everything in its place. This is a direct confirmation that between two people there is either a blood connection or not.

If a woman refuses to conduct an examination after the birth of the child, when his health is not in danger, then the court may equate this statement with satisfying the plaintiff’s dispute. If the decision is positive, then the man can take the court decision and go to the registry office to change the data on the child’s birth certificate.

From this moment on, all responsibilities for raising the child and providing for him are removed from him.

May not apply

If the mother is not single by her status, then the child legally cannot be left without a father. This rule is strictly regulated by law and obliges parents to obtain a child’s birth certificate within 30 days from the date of birth, which will contain not only his information, but also information about the parents.

This is primarily aimed at protecting the interests of the child. Information about the father may not be entered only if the woman is not married and is considered a single mother (Article 17 of the RF IC). If the relationship is registered and the rules listed above are followed, then the presumption of paternity cannot be canceled. It can only be challenged in court.

If the parents are in a civil marriage

Civil marriage today is not equivalent to an officially registered marriage, and accordingly, the rules of law do not apply to it.

That is, it will not be possible to automatically record a cohabitant in the “father” column at the birth of a child, even if he is his blood father.

This can only be done by personally appearing at the registry office to the mother and father to give their consent to enter data into the document and thereby legally recognize this person as the father of the child. That is, this cannot be done unilaterally, when the relationship is not registered.

Presumption of paternity and child support

In accordance with the Family Code, parents must provide for their children until they reach the age of majority, therefore, if the spouses divorce, the parent with whom the child does not live must provide for him financially. But if a man doubts that this is his child, then the question of establishing kinship most often arises precisely when the mother obliges the father to pay child support.

And if a man, under the presumption of paternity, was automatically included in the child’s birth certificate, then it will not be possible to avoid the fate of providing for the child.

This can only be done if you prove through the court that you are not the biological father of the child and when the entry was made in the “father” column, you did not know about it. If you manage to prove this fact, then your responsibility to pay child support is relieved.

In isolated cases, it is possible to return previously paid alimony payments if the man can prove that he became a father by deceiving his wife, for example, forged documents on DNA testing. The statute of limitations for such cases is 3 years.

Considering all of the above, despite the simplification of the procedure for establishing paternity and obtaining a child’s birth certificate, this issue remains one of the most controversial in the legislative framework.

That is why challenging the procedure for the presumption of paternity can only be done in court, taking into account each individual case and the evidence presented.